"Oftentimes, I get slow responses from
people who are intoxicated. And other times, I get a slow response from people
who may be suspended or not have insurance, because they want to get to what I
call home base. They think their car won't get impounded if they get
caught."

Blood went on to describe his contact with defendant:

"I asked him for his license and
insurance. He told me he did not have a license. I asked him if he was
suspended. He told me yes. When I asked him what for, he told me he let his
license expire."

"A I issued [defendant] citations and
conducted an inventory of the vehicle.

"Q Why did you do that?

"A It's our policy, practice, to
inventory vehicles prior to them being impounded by a private tow company.

"Q And why was the car being
impounded by a private tow company?

"A Because [defendant] was violation
suspended and he was driving uninsured."

On cross-examination, defendant's
counsel asked Blood whether the impounded car was registered in defendant's
name. Blood said that he could not recall. Counsel asked, "Isn't it true
that it was actually in his mother-in-law's name?" Blood answered,
"I couldn't tell you."

After Blood testified, the state
introduced into evidence a copy of defendant's driving record, which defendant
stipulated to be accurate. The record shows that defendant's license was
suspended in 1999 for driving uninsured and that he was convicted in 2001 of
driving while suspended and in 2005 of both driving while suspended and driving
uninsured.

Defendant's wife, Regina Gonzales,
also testified at the hearing. She testified that the car defendant had driven
belonged to her mother and that her mother had insurance on the car. Gonzales
also testified that she did not have a driver's license but that her mother
did. She stated that her mother was not at the house when defendant was
stopped. She added that her mother had, on and off for several months, left
the car at their house because she had two vehicles but had only one parking
space at her own home, which was three or four miles away.

The prosecutor argued to the trial
court that Blood validly impounded the car under the community caretaking
doctrine. She pointed out that defendant's license had been suspended for
having no insurance, that he had previously been convicted of driving while
suspended and driving uninsured, and that there were no other insured drivers
at the scene. She argued that, as a public policy matter, "[w]e don't
want people driving around when they have a car easily at their disposal when
they don't have insurance on that car and * * * they have a suspended license *
* *." She contended that impounding the car would prevent further unlicensed
and uninsured driving. The prosecutor also argued that allowing a person to
avoid having the car impounded by making it to his or her driveway when the
police are in pursuit with their overhead lights on would encourage unlicensed
and uninsured drivers to elude the police and to drive recklessly.

Defendant argued to the trial court
that, because he had stopped in his own driveway, Blood lacked authority to
impound the car. He contended that the community caretaking doctrine allows
impoundment only when a car is blocking traffic or would be left in a public
location because no licensed driver is available to remove it. Defendant
relied on Miranda v. City of Cornelius, 429 F3d 858 (9th Cir 2005), in
which the Ninth Circuit held, under similar circumstances, that the community
caretaking doctrine did not justify impounding a car.

The trial court asked whether the
issues defendant was raising would apply if defendant had pulled over as soon
as Blood signaled him to stop instead of continuing on to his driveway. Defendant
conceded that they would not. The court concluded that defendant had failed to
pull over within a reasonable time, and it stated, "I'm not going to allow
the defendant to benefit from that failure * * *." Accordingly, it denied
defendant's motion to suppress. After a stipulated facts trial, the court
found defendant guilty.

The state's alternative arguments
require little discussion, so we dispose of them at the outset. The state did
not raise either argument at trial, and neither argument served as the basis
for the trial court's ruling. If the question presented is not purely one of
law, we will affirm a trial court on an alternative ground only if, among other
requirements, "the record materially [is] the same one that would have
been developed had the prevailing party raised the alternative basis for
affirmance below." Outdoor Media Dimensions Inc. v. State of Oregon,
331 Or 634, 659-60, 20 P3d 180 (2001). Both of the state's alternative
arguments present factual issues. The first turns on whether Blood acted in
good faith in impounding the car, and the second turns on whether defendant had
a possessory interest in the car. Had those issues been raised in the trial
court, defendant might have been able to develop a different record by
presenting evidence concerning Blood's knowledge and understanding of the Ninth
Circuit's decision in Miranda--which we explain below--and evidence as
to defendant's possessory interest in the car. Because the record might have
developed differently, we do not consider the state's alternative arguments.

We turn, then, to the parties'
arguments concerning the community caretaking exception. Our analysis starts
from the unassailable premises that the impoundment of the car in this case was
a seizure within the meaning of the Fourth Amendment and that the car was not
seized pursuant to a warrant. The state concedes that, if the impoundment was
not a valid exercise of the police's community caretaking function, the seizure
violated the Fourth Amendment.

The United States Supreme Court first
noted the community caretaking function of the police in explaining the
automobile exception to the warrant requirement. In Cady v. Dombrowski,
413 US 433, 441, 442, 93 S Ct 2523, 37 L Ed 2d 706 (1973), the Court stated
that the police may search automobiles, unlike buildings, based on probable
cause alone, because of the "ambulatory character" of automobiles and
the fact that

"the extent of police-citizen contact involving
automobiles will be substantially greater than police-citizen contact in a home
or office. Some such contacts will occur because the officer may believe the
operator has violated a criminal statute, but many more will not be of that
nature. Local police officers * * * frequently investigate vehicle accidents
in which there is no claim of criminal liability and engage in what, for want
of a better term, may be described as community caretaking functions, totally
divorced from the detection, investigation, or acquisition of evidence relating
to the violation of a criminal statute."

At issue in Cady was the
lawfulness of a search of a car driven by the defendant, a Chicago police
officer, which led to evidence implicating the defendant in a murder. The
defendant had crashed the car in rural Wisconsin and was taken to the
hospital. Id. at 435-36. The police had the car towed to a privately
owned garage. The Wisconsin police believed that Chicago police officers were
required to carry their service revolvers at all times, and they had not found
a revolver on the defendant's person, so they searched the car, including the
trunk, pursuant to "'standard procedure in [that police] department,' to
protect the public from the possibility that a revolver would fall into
untrained or perhaps malicious hands." Id. at 443 (brackets in Cady).
Items found in the trunk implicated the defendant in a murder and were used
against him at trial. Id. at 438.

The Supreme Court ruled that both the
impoundment of the car and the search of the trunk were reasonable. With
respect to the impoundment, the Court did not expressly refer to the community
caretaking function, but it noted that the car

"was disabled as a result of the accident, and
constituted a nuisance along the highway. [The defendant], being intoxicated
(and later comatose), could not make arrangements to have the vehicle towed and
stored. At the direction of the police, and for elemental reasons of safety,
the automobile was towed to a private garage."

With respect to the search of the
trunk, the Court did expressly refer to the "caretaking" nature of
the police's conduct:

"The Court's previous recognition of the
distinction between motor vehicles and dwelling places leads us to conclude
that the type of caretaking 'search' conducted here of a vehicle that was
neither in the custody nor on the premises of its owner, and that had been
placed where it was by virtue of lawful police action, was not unreasonable
solely because a warrant had not been obtained. * * * Where, as here, the trunk
of an automobile, which the officer reasonably believed to contain a gun, was
vulnerable to intrusion by vandals, we hold that the search was not
'unreasonable' within the meaning of the Fourth and Fourteenth Amendments."

Id. at 447-48.

The Supreme Court cited Cady
and the "community caretaking function" of the police in analyzing a
warrantless impoundment and inventory of a car in South Dakota v. Opperman,
428 US 364, 96 S Ct 3092, 49 L Ed 2d 1000 (1976). In that case, the
defendant's car was impounded for parking violations. Id. at 366. An
officer inventoried the contents of the car at the impound lot and found
drugs. The defendant moved to suppress the evidence, arguing that it was
obtained in violation of the Fourth Amendment.

The Supreme Court reviewed the
justification for the automobile exception to the warrant requirement, again
noting "the element of mobility" as well as the fact that, "[i]n
discharging their varied responsibilities for ensuring the public safety, law
enforcement officials are necessarily brought into frequent contact with
automobiles," most of which, the Court noted, is "distinctly
noncriminal in nature." Id. at 367-68. The Court explained:

"In the interests of public safety and as
part of what the Court has called 'community caretaking functions,' Cady v.
Dombrowski, supra, at 441, automobiles are frequently taken into
police custody. Vehicle accidents present one such occasion. To permit the
uninterrupted flow of traffic and in some circumstances to preserve evidence,
disabled or damaged vehicles will often be removed from the highways or streets
at the behest of police engaged solely in caretaking and traffic-control
activities. Police will also frequently remove and impound automobiles which
violate parking ordinances and which thereby jeopardize both the public safety
and the efficient movement of vehicular traffic. The authority of police to
seize and remove from the streets vehicles impeding traffic or threatening
public safety and convenience is beyond challenge."

Id. at 368-69 (footnote omitted). The Court also
described the "practice of securing and inventorying the automobiles'
contents" as "caretaking procedures," explaining that the
practice "developed in response to three distinct needs: the protection of
the owner's property while it remains in police custody; the protection of the
police against claims or disputes over lost or stolen property; and the
protection of the police from potential danger." Id. at 369
(citations omitted). The Court concluded that the police conduct was
reasonable and that the evidence was validly seized.

Since deciding Opperman, the
Supreme Court has not elaborated on the community caretaking doctrine with
respect to impounding vehicles except to hold, in Colorado v. Bertine,
479 US 367, 373-74, 107 S Ct 738, 93 L Ed 2d 739 (1987), that impoundment is
reasonable even though less intrusive alternatives might be available. However,
as noted above, the Ninth Circuit addressed the doctrine in Miranda,
which involved facts similar to those in this case, albeit in a different
procedural posture.

Miranda was a civil action
brought under 42 USC section 1983, in which the plaintiffs, who were husband
and wife, alleged that their Fourth Amendment rights were violated when the
police impounded their van. 459 F3d at 861. The husband, who was a licensed
driver, was teaching the wife, who was not licensed, to drive in their
neighborhood. A police officer observed the wife driving the van poorly and at
a low speed. He activated his overhead lights and followed the van until the
wife pulled into the driveway of the plaintiffs' home. The officer cited the
wife for driving without a license and cited the husband for permitting the
operation of a vehicle by an unlicensed driver. He then impounded the van and
had it towed away pursuant to the same City of Cornelius ordinance and statute
at issue in this case.

The Ninth Circuit concluded that the
impoundment was not a reasonable exercise of the police's community caretaking
function:

"In their 'community caretaking' function,
police officers may impound vehicles that 'jeopardize public safety and the
efficient movement of vehicular traffic.' Opperman, 428 US at 368-69.
Whether an impoundment is warranted under this community caretaking doctrine
depends on the location of the vehicle and the police officers' duty to prevent
it from creating a hazard to other drivers or being a target for vandalism or
theft. A driver's arrest, or citation for a non-criminal traffic violation as
in this case, is not relevant except insofar as it affects the driver's ability
to remove the vehicle from a location at which it jeopardizes the public safety
or is at risk of loss. But no such public safety concern is implicated by the
facts of this case involving a vehicle parked in the driveway of an owner who
has a valid license.

"* * * * *

"An impoundment may be proper under the
community caretaking doctrine if the driver's violation of a vehicle regulation
prevents the driver from lawfully operating the vehicle, and also if it is
necessary to remove the vehicle from an exposed or public location. The
violation of a traffic regulation justifies impoundment of a vehicle if the
driver is unable to remove the vehicle from a public location without
continuing its illegal operation.

"* * * * *

"The state has the right to allow the
driver to drive away with the vehicle only if he or she is able to do so in
compliance with all regulations intended to ensure the vehicle's safe operation.
However, the decision to impound a vehicle after the driver has violated a
vehicle regulation must consider the location of the vehicle, and whether the
vehicle was actually 'impeding traffic or threatening public safety and
convenience' on the streets, such that impoundment was warranted."

Id. at 864-65 (citations and footnote omitted).

The defendants in Miranda
argued that the impoundment satisfied the caretaking function by deterring the
plaintiffs from repeating their illegal activity in the future. Id. at
866. The court rejected that argument, stating that "[s]uch a rationale
would expand the authority of the police to impound regardless of the
violation, instead of limiting officers' discretion to ensure that they act
consistently with their role of 'caretaker of the streets.'" Id.
The court concluded that "the deterrence rationale is incompatible with
the principles of the community caretaking doctrine." Id.

Defendant in this case relies heavily
on Miranda, essentially urging us to adopt the Ninth Circuit's
reasoning. The state responds that Miranda presents an overly narrow
interpretation of the community caretaking doctrine. It notes that, in Opperman,
the Supreme Court referred to "the interests of public safety" in
describing community caretaking. 428 US at 368. According to the state,
deterring unlicensed drivers from using the roads furthers the interests of
public safety and thus comes within the community caretaking doctrine. It
notes that the Supreme Court has recognized that states have a "vital
interest" in ensuring that only qualified drivers are permitted to operate
motor vehicles. See Delaware v. Prouse, 440 US 648, 658, 99 S Ct 1391,
59 L Ed 2d 660 (1979). The state also contends that "deterrent
seizures" protect the public by preventing illegal behavior.

In short, under the circumstances of
this case, community caretaking does not extend to impounding a car from the
defendant's driveway. It follows that the warrantless seizure of the car was unlawful
and that the evidence discovered in the subsequent inventory should have been
suppressed.

Reversed and remanded.

1.ORS 811.540
provides that a person commits a Class C felony if the person knowingly flees
or attempts to elude a pursuing police officer in a vehicle after the officer
has signaled the person to stop.

2.ORS 811.175
provides that driving while suspended is a Class A traffic violation unless it
is committed under circumstances, listed in ORS 811.182, that elevate the
offense to a misdemeanor or a felony. Blood cited defendant for a traffic
violation only.

4.The state also
argues that, by impounding the car, Blood ensured that it would be returned to
its rightful owner. That argument is not well taken. We assess the
reasonableness of a seizure based on the information that the police had at the
time of the seizure. Scott v. United States, 436 US 128, 137, 98 S Ct
1717, 56 L Ed 2d 168 (1978) ("[A]lmost without exception in evaluating
alleged violations of the Fourth Amendment the Court has first undertaken an
objective assessment of an officer's actions in light of the facts and
circumstances then known to him."). Nothing in the record indicates that
Blood was aware that the car did not belong to defendant and that its actual
owner was not present when he impounded it. We express no opinion as to
whether the impoundment would have been reasonable had Blood been aware of
those facts.

5.Coolidge
did not address the community caretaking doctrine. Rather, the Court
considered whether the seizure of the defendant's car from his driveway and the
subsequent search of it were justified by the automobile exception to the
warrant requirement. 403 US at 458 (plurality opinion).

6.The state
contends that defendant's driving record reflects a history of driving while
suspended in spite of citations for doing so and thus demonstrates the need for
a more powerful deterrent. The problem with the state's argument is, again,
that we assess the reasonableness of a seizure based on the information that
the police had at the time of the seizure. Scott, 436 US at 137.
Nothing in the record indicates that Blood was aware of defendant's driving
record when he impounded the car. We express no opinion as to whether the impoundment
would have been reasonable had Blood been aware of defendant's record.